President Joe Biden’s decision to invoke executive privilege over the audio recording of his interview with special counsel Robert Hur regarding classified documents has drawn criticism from Republicans and legal experts. This move comes after Biden had previously waived his privilege over the interview transcript.
Just hours before a House Judiciary Committee hearing aimed at holding Attorney General Merrick Garland in contempt for not providing the audio, Biden’s counsel and the Department of Justice (DOJ) announced the last-minute assertion of executive privilege. This action intends to prevent Congress from accessing the recording by invoking separation of powers.
During the Judiciary hearing, and later an Oversight Committee hearing, House GOP members questioned the legitimacy of Biden’s assertion, suggesting it was a political maneuver to avoid revealing details about the president’s mental state.
“That tape must be quite something if the administration of the president has decided to assert executive privilege to keep it from the committee in the course of an impeachment inquiry,” Rep. Dan Bishop (R-NC) said during the Judiciary hearing, alluding to the wider Republican-led investigation into the Biden family’s business activities.
Following Hur’s disclosure that Biden mishandled classified documents but would not face prosecution, House Republicans demanded the interview transcript, audio, and other materials. Initially, Biden did not assert executive privilege over the report, and the DOJ provided Republicans with nearly all requested items except the audio.
Experts argue that because the president authorized the DOJ to release the transcript, which is understood to be verbatim, he likely waived privilege over the audio recording as well.
John Banzhaf, a public interest law professor at George Washington University Law School, explained that executive privilege is meant to allow the president and advisers to candidly discuss issues without fear of public exposure. However, since the discussions have already been made public through the transcript, the privilege may have been forfeited.
Banzhaf, who has no political bias as he filed the complaint leading to Trump’s investigation in Georgia, pointed out that the transcript revealed a law enforcement interview rather than deliberations between the president and his advisors.
“The purpose of executive privilege is not to keep damaging information from Congress simply because it could embarrass a president or affect his political chances,” Banzhaf noted. He added that recordings by high government officials have historically caused embarrassment and political consequences, even if made without their consent.
Tom Fitton, president of Judicial Watch, called Biden’s use of executive privilege “novel” and announced plans to legally challenge it. He expressed skepticism about how executive privilege could apply to these tapes.
Debates over whether Garland should be held in contempt for not turning over the audio recording have polarized the parties. During a chaotic House Oversight hearing, Rep. Marjorie Taylor Greene (R-GA) clashed with Reps. Jasmine Crockett (D-TX) and Alexandria Ocasio-Cortez (D-NY).
In the more orderly Judiciary hearing, Republicans questioned the reasoning behind providing the transcript but withholding the recording.
Rep. Kelly Armstrong (R-ND) asserted, “The person providing the evidence doesn’t get to choose the manner and form in which the evidence is provided. … There’s a difference between a transcript and a video and audio… And I don’t possibly understand the argument of ‘we’ll release the transcript, but we won’t release the tapes.’”
Both contempt resolutions from the Judiciary and Oversight Committees passed, now awaiting a floor vote in the full House scheduled by GOP leadership.
The resolution is unlikely to lead to criminal proceedings for Garland, as he controls the Justice Department. DOJ spokespeople have contested the committee’s efforts, warning that releasing the audio could deter witnesses from coming forward. The DOJ also reiterated that executive privilege, once asserted, protects officials from prosecution for contempt.
